No. 1315 PITTSBURGH, 1983, Appeal from the Order of October 4, 1983 in the Court of Common Pleas of Erie County Criminal Division No. 116 of 1983
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.
Brosky, Tamilia and Roberts, JJ. Brosky, J., concurs in the result. Roberts, J., concurs with statement.
This is an appeal taken from an Order of the trial court amending appellant's 8 to 16 months sentence to provide for service of the sentence in a state correctional facility rather than in the Erie County Jail.*fn1 This issue has not been reviewed recently by our appellate courts and the specific question of judicial power to amend a sentence to provide for a change of institution has not been addressed. The mootness issue is an important one as the appellate courts have consistently held that moot questions shall not be considered. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d
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(1977) (Roberts, J.). However, when the question presented is capable of repetition or escaping judicial review, Graziano Construction Company, Inc. v. Lee, 298 Pa. Super. 311, 444 A.2d 1190 (1982); Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969); Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976), the appellate courts will undertake such a review. In a case very much on point, Cunningham v. Commonwealth of Pennsylvania Board of Probation and Parole, 69 Pa. Commw. 25, 450 A.2d 270 (1982), the Commonwealth court held that an action challenging computation of a maximum expiration date on a petitioner's prior sentence was rendered moot by the fact that the maximum term on the prior conviction had expired while he began to serve a new sentence. However, in considering the question of mootness in Commonwealth v. Kelly, 274 Pa. Super. 242, 418 A.2d 387 (1980), our Court held that when a defendant appeals his conviction after he has completed his sentence, the appeal is not moot when there is a possibility of collateral civil or criminal consequences as a result of the conviction. Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971). In this case, if the sentence in question under the law relating to the regulation of probation and parole decisions of the Board of Parole would require that the new sentence to be served at the State Correctional Institution would be secondary to service of the unexpired parole, then this question will not be moot as the expiration time of service on the present sentence will not occur until some time in 1988.
The appellant at No. 175 of 1977 was sentenced to serve an additional term of two years to four years at a state correctional institution to take effect October 21, 1983, just seventeen days after the appellant's transfer to the State Correctional Institution. While this is alleged by the district attorney and would appear to render the issue in this case moot, we would take pause and note the effect of hearings by the Board of Parole on parole violations involving homicide charges on which the defendant has already
served five years of the five to ten year sentence of July 9, 1977. After his arrest on the assault charge in northeast Erie at No. 116 of 1983, which is the charge and sentence appealed from, a detainer was lodged against the defendant on the homicide parole violation. This detainer and parole violation adds a new dimension to the issue before us for the following reasons. It is provided at 61 P.S. § 331.21a Commission of crime during parole; other violations of terms of parole that:
If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:
(1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice, and the new sentence imposed upon him is to be served in any such ...